S054173, Opinion — State v. Jacob

181
Argued and submitted September 10, 2007, decision of Court of Appeals affirmed;
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings February 22, 2008
STATE OF OREGON,
Respondent on Review,
v.
ANDRE RAMON JACOB,
Petitioner on Review.
(CC 02023 1253; CA A1 19971 ; SC S0541 73)
180 P3d 6

182 State v. Jacob
CJS, Criminal Law § 1638.
On review from the Court of Appeals.*
J amesa J. Drake, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With
her on the brief was Peter Gartlan, Chief Defender, Legal
Services Division, Office of Public Defense Services.
Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brieffor respondent on review.
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
WALTERS, J.
The decision of the Court ofAppeals is affirmed. The judg
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
* Appeal from Multnomah County Circuit Court, Robert Redding, Senior
Judge. 208 Or App 62, 145 P3d 212 (2006).
Linder, J., did not participate in the consideration or decision of this case.

Cite as 344 Or 183
WALTERS, J.
Defendant was convicted three times of felonies
involving the use or threatened use of firearms; the first con
viction was in 1983, the second in 1991, and the third in 200 2.
Defendant received a five-year minimum sentence for the
first felony and a 10-year minimum sentence for the second
felony, under the applicable versions of ORS 161.610. The
trial court that sentenced defendant on the third felony
refused to impose a 30-year minimum sentence pursuant to
ORS 161.610(4)(c) (2001)1 because it concluded that defen
dant's first "gun minimum"2 conviction and sentence were
constitutionally infirm. The state appealed and, in a divided,
en bane decision, the Court of Appeals held that defendant
could not collaterally attack the first conviction. As a result,
the court reversed the decision of the trial court and
remanded the case to the trial court for imposition of sen
tence. State v. Jacob, 208 Or App 62, 145 P3d 212 (2006). We
affirm the decision of the Court of Appeals.
In 1982, a jury found defendant guilty of first-degree
robbery. In early 1983, the trial court imposed a five-year gun
minimum sentence based on that conviction, after holding
the evidentiary hearing required under the then-applicable
version of ORS 161.610 ( 1981) and finding that defendant
had used or threatened to use a firearm.a During the time
between the guilty verdict and the sentence, this court had
issued a decision holding that those subsections of ORS
161.610 ( 1981), which allowed the court, as opposed to the
jury, to make the firearm finding, violated a defendant's jury
1 ORS 1 6 1 .610(4) (200 1 ) provides, in part:
"The minimum terms of imprisonment for felonies having as an element
the defendant's use or threatened use of a firearm in the commission of the
crime shall be as follows:
"(a) Except as provided in subsection (5) of this section, upon the first con-
viction for such felony, five years *
"(b) Upon conviction for such felony committed after punishment pursu
ant to paragraph {aJ of this subsection, 10 years * * *.
"(c) Upon conviction for such felony committed after imprisonment pur
suant to paragraph (b) of this subsection, 30 years."
We use the term "gun minimum" to describe the convictions and minimum
sentences that are the subject of ORS 1 6 1 . 6 10 .
" I n this opinion, w e refer to that conviction a s the "1983 conviction."

State v. Jacob
trial right under Article I, section 1 1 , of the Oregon Consti
tution.4 See State v. Wedge , 293 Or 598, 607-08, 652 P2d 773
( 1982) (so holding). However, defendant did not raise a con
stitutional objection to the court making the finding at sen
tencing; neither did he raise a Wedge argument, either on
direct appeal or in a post-conviction proceeding.
In 1991, a jury found defendant guilty of first-degree
robbery with a firearm. The trial court imposed a 10-year gun
minimum sentence pursuant to ORS 161.610 ( 1 989). Defen
dant did not raise any issue concerning the lawfulness of the
1983 conviction during that 199 1 trial court proceeding, nor
did defendant raise that issue on direct appeal from the 1991
judgment or in a post-conviction proceeding.
In 2002 , the court convicted defendant of first-degree
robbery with a firearm following a stipulated facts trial. The
state requested that defendant receive a 30-year gun mini
mum sentence pursuant to ORS 161.610(4)(c) (200 1). Defen
dant objected to the state's request, arguing that his 1983
conviction and sentence were unconstitutional under Wedge
and, therefore, could not serve as a predicate for a 30-year
gun minimum sentence. The trial court agreed with defen
dant and imposed a 10-year gun minimum sentence under
ORS 161.610(4)(b) (200 1). The state appealed.5
The Court of Appeals, in a split decision, reversed
the decision of the trial court and remanded for resen tencing.
The Court of Appeals first acknowledged that ORS 161.610
(2001) did not expressly permit defendant to challenge the
validity of the 1983 conviction and sentence, nor did it
require the state to prove that that prior conviction and sen
tence were constitutionally valid. Jacob, 208 Or App at 66-67 .
The court then looked to the broader context of that statute,
including the statutes that govern direct appeal and post
conviction proceedings. Id. at 67. The court concluded that
4 Article I, section 11, of the Oregon Constitution provides, in part, "In all crim
inal prosecutions, the accused shall have the right to public trial by an impartial
jury in the county in which the offense shall have been committed[.]"
ORS 138.020 permits the state to appeal. ORS 138.222(4)(a) provides for an
appeal by either party that asserts that " [t]he sentencing court failed to comply
with requirements oflaw in imposing or failing to impose a sentence [.]"

Cite as 344 Or 185
that statutory context, specifically ORS 138.540( 1 ),6 demon
strated that the legislature did not intend to allow a defen
dant to collaterally attack an arguably constitutionally
infirm judgment in a proceeding under ORS 161.610. Id. at
67-68. The Court of Appeals therefore held that the trial
court erred when it refused to include the 1983 conviction in
determining defendant's sentence under ORS 161.610. Id. at
75.
The dissent would have affirmed the trial court on
statutory construction grounds. Id. at 80 (Breithaupt, J., pro
tempore, dissenting). The dissent explained that, in its view,
there were two "key differences" between the 1981 version of
ORS 161.6 10, applicable to defendant's 1983 conviction, and
the 2001 version of ORS 161.610, applicable to defendant's
2002 conviction: ( 1) the earlier version allowed the court to
make the necessary firearm finding; and (2) the earlier ver
sion allowed imposition of a gun minimum sentence regard
less of whether the court or the jury made the finding. Id. at
81-82. Specifically, the version of ORS 161.610 applicable to
defendant's first robbery conviction provided for sentence
enhancement for " 'felony convictions in which the court finds
that the defendant used or threatened to use a firearm.' " Id.
at 89 (quoting ORS 161.610(5) ( 1981)). Following the changes
made by the legislature to incorporate the holding of Wedge ,
the dissent noted, the gun minimum sentence could only be
imposed for " 'felonies having as an element the defendant's
use or threatened use of a firearm in the commission of a
crime.' " Id. (quoting ORS 161.610(4) ( 1985)). Based on that
textual difference, the dissent concluded that the 2001 legis
lature did not intend that felony convictions in which a court
had found the firearm element to serve as predicate offenses
in the post-Wedge version of ORS 161.610. Id. at 89-90.
Defendant sought review in this court. We held this
case in abeyance pending our decision in Bailey v. Lampert,
342 Or 321, 153 P3d 95 (2007), which was issued on February
8, 2007. We thereafter allowed review.
6 That subsection provides, in part, that post-conviction relief "shall be the
exclusive means, after j udgment rendered upon a conviction for a crime, for chal
lenging the lawfulness of such judgment or the proceedings on which it is based."
ORS 138.540l 1).

State v. Jacob
On review, defendant argues, consistent with the
dissent in the Court of Appeals , that the terms of ORS
1 6 1 .6 1 0 (2001 ) do not permit imposition of a 30-year gun
minimum sentence. Defendant also argues that, even if the
terms of ORS 161.610 permit such a sentence, the Oregon
Constitution prohibits the use of the 1983 conviction to
enhance his sentence, and two other statutes, ORS 137.079
and ORS 138.222, demonstrate a legislative intent to allow
that challenge.
We begin our analysis with defendant's first argu
ment and the text of the gun minimum statute. We again set
forth the relevant portions of the version of that statute
applicable to defendant's 2002 conviction and sentence:
"(3) [I] f a defendant is convicted of a felony having as
an element the defendant's use or threatened use ofa firearm
during the commission of the crime, the court shall impose
at least the minimum term of imprisonment as provided in
subsection (4) of this section. * * *
"(4) The minimum terms of imprisonment for felonies
having as an element the defendant's use or threatened use
of a firearm in the commission of the crime shall be as
follows:
"(a) Except as provided in subsection (5) of this sec
tion, upon the first conviction for such felony, five years,
except that if the firearm is a machine gun, short-barreled
rifle, short-barreled shotgun or is equipped with a firearms
silencer, the term of imprisonment shall be 10 years.
"(b) Upon conviction for such felony committed after
punishment pursuant to paragraph (a) of this subsection,
10 years, except that if the firearm is a machine gun, short
barreled rifle, short-barreled shotgun or is equipped with a
firearms silencer, the term of imprisonment shall be 20
years.
"(c) Upon conviction for such felony committed after
imprisonment pursuant to paragraph (b) of this subsection,
30 years."
ORS 161.610 (200 1) (emphases added).

Cite as 344 Or 181 187
The text of subsection (4)(c) lists two requirements,
and only two requirements, for imposing a 30-year gun min
imum sentence: ( 1 ) a conviction for "such felony," referring to
a felony ''having as an element defendant's use or threatened
use of a firearm during the commission of a crime ," ORS
1 6 1.610(3), which (2) occurred "after imprisonment pursuant
to paragraph (b)" of ORS 161.610(4). Defendant's 2002 con
viction satisfied the first requirement because the crime for
which defendant was convicted in 2002 was a felony, robbery
in the first degree, which had as an element the use of a
deadly weapon, with the indictment specifying a firearm as
that weapon. See ORS 164.415(1) (2001 ) (listing being armed
with a deadly weapon as an element). Defendant's 2002 con
viction also satisfied the second requirement because it fol
lowed his imprisonment for 10 years pursuant to subsection
(4)(b) of ORS 161.610, as established by the 1991 judgment.7
Because defendant's 2002 conviction met both of the
requirements of subsection(4)(c), the trial court was required
to impose a 30-year minimum sentence. ORS 161.610(3),
(4)(c).
The dissent in the Court of Appeals would have
reached a different result because, as outlined, it took the
position that the statute as a whole requires, as a predicate
for imposition of a 30-year gun minimum sentence, that
defendant have two prior convictions for "felonies having as
an element the defendant's use or threatened use of a fire
arm." Although the statute would certainly permit the impo
sition of a 30-year minimum sentence after two such convic
tions, neither the text of subsection (4)(c) nor the text of the
7 The 1991 judgment establishes that defendant was convicted of robbery with
a firearm (a felony that had as an element the use or threat of use of a firearm) and
sentenced to a minimum of 10 years in prison under ORS 161.6 10. The 1991 judg
ment is not more specific and does not itself make clear whether the 10-year
imprisonment was imposed under ORS 1 6 1 . 6 10( 4)(a) or (b), which both provide for
a 1 0-year minimum sentence. Theoretically, the 1991 court could have imposed a
1 0-year minimum sentence under ORS 161.610(4l(al if the firearm defendant used
was a machine gun, short-barreled rifle, short-barreled shotgun, or was equipped
with a firearms silencer. However, neither the state nor the defendant makes any
such contention. Defendant's arguments are premised on an assumption that the
1991 court imposed its sentence pursuant to subsection (4l(b) of ORS 1 6 1 .610. If
the 1991 court had sentenced defendant to 10 years imprisonment under para
graph (a), the 2002 trial court could not have imposed a 30-year sentence under
subsection (4)(c) regardless of the validity of the 1983 conviction. Subsection (4)(c)
does not permit a 30-year gun minimum sentence unless the defendant has previ
ously been imprisoned pursuant to subsection (4)(b).

188 State v. Jacob
statute as a whole requires two such convictions. As
explained, subsection (4)(c) contains two requirements for
imposition of a 30-year minimum sentence, but those two
requirements do not include a requirement of two prior gun
minimum convictions . Instead, the statute as a whole pro
vides for lengthier periods of imprisonment after less strin
gent sanctions have proven unsuccessful. The statute
requires increased incarceration after prior "punishment"
(subsection (4)(b)) and "imprisonment" (subsection (4)(c)).
The statute's terms do not evidence a legislative intent to
consider the validity of the convictions that resulted in the
previous punishment or imprisonment.
The broader statutory context of ORS 161.61 0 sup
ports our interpretation. ORS 138.540( 1 ) provides that post
conviction relief is the exclusive means for challenging a con
viction, once an appeal has been unsuccessful , or the time for
appeal has passed:
" [A] petition pursuant to ORS 138.5 10 to 138.680 [the post
conviction relief provisions] shall be the exclusive means,
after judgment rendered upon a conviction for a crime, for
challenging the lawfulness of such judgment or the proceed
ings upon which it is based. The remedy created by ORS
138.510 to 138.680 does not replace or supersede the motion
for new trial, the motion in arrest of judgment or direct
appellate review of the sentence or conviction * * *."
(Emphases added.) In our view, by designating post
conviction relief as the "exclusive" means for challenging the
lawfulness of a final judgment, the legislature intended to
prohibit other, collateral, challenges to such a judgment.
Defendant concedes that he did not bring a Wedge challenge
to the 1983 conviction by the means anticipated or author
ized by ORS 138.540( 1).
The court's reasoning in State v . Sims, 335 Or 269,
2 73-74, 66 P3d 472 (2003), and in Bailey v. Lampert, 342 Or
3 2 1 , 153 P3d 95 (2007) , also echoes our conclusion regarding
the interpretation of ORS 161.6 10(4)(c). In Sims, this court
addressed the felony driving while revoked statute. 335 Or at
2 7 1 . The defendant in that case argued that the 10-year-old
administrative order revoking his driver's license had been
erroneously issued and therefore the driving while revoked

Cite 189
charge against him should have been dismissed. Id. at 271-
72. This court held that the text of the driving while revoked
statute, ORS 8 1 1 . 182, did not require consideration of the
validity of the revocation order; instead, "it appear[ed] that
the legislature intended to criminalize the violation of a * * *
revocation order without requiring the state to revisit the
convictions underlying that order." Id. at 27 4. The court
explained that " [a] criminal defendant's ability to attack col
laterally the validity of an underlying suspension or revoca
tion order must arise from the legislature's intent to permit
such an attack." Id. at 275. In the driving while revoked stat
ute, the court held, the legislature intended only that the
state prove that ( 1) the defendant's license had been revoked,
and (2) the defendant drove a motor vehicle while the revo
cation order was in effect. Id. Thus, that statute did not
authorize a collateral attack of the revocation order. Id. 8
In Bailey, the court addressed whether a conviction
for being a felon in possession of a firearm had to be set aside
because the defendant's prior felony conviction was
overturned after he had been convicted of being a felon in
possession. 342 Or at 323. The court analyzed the felon in
possession statute, ORS 166.270, and noted that that statute
required only that the state prove that ( 1 ) the defendant had
been convicted of a felony and that (2) the defendant later
possessed a firearm. Id. at 325. Thus, because the defendant
had been a felon at the time that he possessed a firearm, this
court concluded that he was a felon in possession under the
terms of the statute, despite the fact that his earlier felony
conviction was later overturned. Id. at 329.
As in Sims and Bailey, the text of the statute at issue
controls the result. Because the terms of ORS 161.6 10(4)(c)
8 In State v. Probst, 339 Or 612, 625, 124 P3d 1237 (2005), in contrast to Sims,
a collateral attack on a prior conviction was allowed where the defendant was
charged with felony driving under the influence of intoxicants (DUH), under ORS
813.010(5). Under that statute, driving under the influence of intoxicants becomes
a felony if the defendant had been convicted of that crime three times in the pre
ceding 10 years. Id. at 614. As noted by the court, a related statute, ORS 813 .328,
specifically contemplated that a defendant could choose to challenge the validity of
prior DUH convictions and required that the defendant give notice if the defendant
chose to mount such a challenge. Id. at 625. In this case, no similar statute contem
plates that a defendant could challenge the validity of a prior gun crime.

State v. Jacob
mandate a 30-year minimum sentence, we reject defendant's
first argument and turn to his second.
Defendant contends that, even if ORS 161.610 does
not provide a statutory basis on which to hang his argument,
the court's decision in Wedge provides that hook. That deci
sion, defendant argues, prohibited the 2002 trial court from
using his 1983 conviction in arriving at his sentence, and
ORS 137 .079(5)9 compelled, or at least authorized, the trial
court to correct that wrong. Neither Wedge nor ORS
137.079(5) permits defendant's collateral attack.
Defendant relies on this court's decision in State u.
Stewart/ Billings, 32 1 Or 1 , 892 P2d 1013 ( 1995), to support
his argument that ORS 137 .079(5) permitted him to chal
lenge his 1983 conviction in the 2002 proceedings. In
Stewart I Billings, the defendants challenged the use ofjuve
nile adjudications in determining their criminal history for
later sentencing purposes. Id. at 4. The defendants argued
that using the j uvenile adjudications violated their right to a
jury trial under Article I, section 1 1 , of the Oregon Constitu
tion because those juvenile crimes were not tried to a jury. Id.
9 ORS 137.079(5), which governs the use of presentence reports, states:
"(a) The provisions of this subsection apply only to a defendant being sen
tenced for a felony committed on or after November 1, 1989.
"(b) Except as otherwise provided in paragraph (c) of this subsection, the
defendant's criminal history as set forth in the presentence report shall satisfy
the state's burden of proof as to the defendant's criminal history.
"(c) Prior to the date of sentencing, the defendant shall notify the district
attorney and the court in writing of any error in the criminal history as set
forth in the presentence report. Except to the extent that any disputed portion
is later changed by agreement of the district attorney and defendant with the
approval of the court, the state shall have the burden of proving by a prepon
derance of evidence any disputed part of the defendant's criminal history. The
court shall allow the state reasonable time to produce evidence to meet its
burden.
"(d) The court shall correct any error in the crim inal history as reflected i n
the presen tence report.
''le) If corrections to the presentence report are made by the court, only
corrected copies of the report shall be provided to individuals or agencies pur
suant to ORS 137.077.
"(f) Except as provided in ORS 138.222, the court's decision on issues
relating to a defendant's criminal history shall not be reviewable on appeal."
(Emphasis added.)

Cite as 344 Or 1 8 1 (2008) 191
In response, the state contended that the defendants' argu
ment was an "impermissible collateral attack on the validity
of their juvenile adjudications." Id. at 5-6. This court disa
greed, explaining that the "defendants' argument [was] not a
collateral attack, because [the] defendants could not have
made a direct attack on the future consequences of their juve
nile adjudications in juvenile court." Id. at 6 (emphasis in
original). The court in Stewart I Billings also went on to hold
that ORS 137.079(5) and ORS 138.222(4)10 provided a statu
tory basis for the defendants' challenge:
"We hold that defendants' state constitutional challenge
to the use of their juvenile adjudications in sentencing in
these cases is authorized by ORS 139.079(5), that the sen
tencing courts had authority to hear defendants' challenge
on the ground asserted, and that appellate courts have
jurisdiction to review that challenge under ORS
138.222(4)."
Id. at 7. It is important to understand that the defendants in
Stewart I Billings did not argue that the juvenile adjudica
tions rendered by a court rather than by a jury were them
selves invalid. Instead, they argued the narrower proposition
that the use of those valid adjudications in a later adult pro
ceeding was impermissible.
In this case, defendant seeks to invalidate his 1983
conviction, at least for sentencing purposes. He does not
argue, as the defendants in Stewart I Billings did, that a prior
valid conviction cannot constitutionally be a predicate for a
later sentence. Defendant asks us to hold, in this unrelated
criminal proceeding, that his 1983 conviction was invalid
under Wedge and, for that reason, that it cannot be used as a
predicate for a 30-year gun minimum sentence. We decline to
10 ORS 138.222(4), which governs appellate review of felony sentences, states
that
" fi]n any appeal, the appellate court may review a claim that:
"(a) The sentencing court failed to comply with requirements of law in
imposing or failing to impose a sentence;
"(b) The sentencing court erred in ranking the crime seriousness classifi
cation of the current crime or in determining the appropriate classification of a
prior conviction or juvenile adjudication for criminal history purposes; or
"(c) The sentencing court erred in failing to impose a minimum sentence
that is prescribed by ORS 137.700 or 137.707."

192 State v. Jacob
do so for two reasons. First, defendant reads Wedge too
broadly. Wedge did not hold that all firearm findings made by
judges rather than juries were constitutionally infirm or
otherwise invalid, whether or not a defendant had challenged
that finding at the time. Instead, Wedge held that " [u] nder
the facts of [that] case ," the defendant was deprived of his con
stitutional right to a jury trial because the trial court, and not
a jury, made the firearm finding under ORS 161.610. Wedge,
293 Or at 609 (emphasis added). Because defendant here
raised no objection to his 1983 conviction and sentence when
they were imposed, either on appeal or in any post-conviction
proceedings related to that conviction, we cannot say that,
under the facts of this case, the 1983 conviction deprived
defendant of his right to a jury trial. Second, in seeking to
have us declare his 1983 conviction invalid for sentencing
purposes, defendant here is pursuing, more than 20 years
later, a collateral attack on his 1983 conviction. This he can
not do. See ORS 138.540(1) (outlining "exclusive means" for
challenging a conviction); see, e.g. , State v. Latta, 241 Or 250,
252, 405 P2d 467 ( 1965) (rejecting the state's attempt to chal
lenge an erroneous post-conviction judgment where the state
had failed to appeal, because it was "an error that should
have been remedied when committed" or through the appel
late process).
Defendant's argument based on ORS 137.079(5) also
is unpersuasive. Defendant is correct that ORS 137.079(5)
permits a sentencing court to correct a criminal history and
that ORS 138.222(4) permits an appellate court to correct the
actions of a sentencing court. ORS 137.079(5) may provide, as
it did in Stewart I Billings, a vehicle for a defendant to assert
that the use of a valid conviction in a later sentencing pro
ceeding is impermissible. We express no opinion as to that
issue. However, where a defendant makes an argument in a
later unrelated criminal proceeding that a prior conviction is
constitutionally invalid, as defendant does here, neither ORS
137.079(5) nor any other statute provides a basis to obtain a
collateral declaration of invalidity. Defendant cannot mount
a challenge to his 1983 conviction at this time or in this
manner.
Finally, we return to our interpretation of ORS
161.610(4)(c) to reiterate that, even if defendant could chal
lenge his 1983 conviction in the 2002 sentencing proceeding,

Cite as 344 Or 193
the alleged invalidity of that 1983 conviction would be of no
assistance to him. Regardless of the validity of the 1983 con
viction, the terms of ORS 161.610(4)(c) required the imposi
tion of a 30-year gun minimum sentence because defendant
was convicted of a gun crime after he had been imprisoned
pursuant to ORS 161.610(4)(b).
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.